On November 28th the Nova Scotia Court of Appeal held that the Nova Scotia Workers’ Compensation Appeals Tribunal erred by ordering the disclosure of a worker’s entire file without redaction.
The matter was about a workplace safety insurance claim, and particularly whether a worker’s condition was caused by his work. The Tribunal made the order in response to an employer’s objection to various redactions made to a set of records in the possession of the Workers Compensation Board. Although the employer argued the redacted information was relevant, the Tribunal ordered the unredacted file to be produced because it lacked the resources to vet for relevance, because fairness and the “ebb and flow” of a hearing supported full disclosure and because of the difficulty in making relevance determinations.
Despite the obvious appearance of laziness, the Tribunal framed its decision as rooted in procedural fairness. In response, the Court said: “…there is no principle of procedural fairness… that a litigant who requests disclosure is entitled to see every document it requests, regardless of relevance and without a relevance ruling by an impartial arbiter.”
Implicit in this statement is a concern for the worker’s privacy interest. The Tribunal had recognized this interest in a policy manual that it disregarded in making its order, though there are aspects of the Court’s reasoning that suggest a more broadly based right to redaction.
The Court gave this guidance on how to vet for relevance:
The person who vets for relevance must keep in mind that material should be disclosed for its connection to the “proposition[s] being advanced” by the parties, to borrow Justice Rothstein’s phrase, and not merely to justify an anticipated conclusion on the merits of those propositions. The vetting official may not be able to foretell precisely how the evidence will be martialed. So the ambit of disclosure should allow the parties some elbow room to strategize for the engagement.
Baker v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2017 NSCA 83.
On September 5th, Arbitrator Abramsky dismissed a motion to anonymize the name of an individual who had grieved harassment, discrimination and a reprisal.
In making its request, the Union rested heavily on the fact the grievance would invite the disclosure of the grievor’s medical information – information about a learning disability and back problems. It also argued that no purpose would be served by publication of the grievor’s identity.
Ms. Abramsky held that the open court principle applied to the statutory tribunal for whom she was sitting (the GSB in Ontario) and that openness was therefore presumed absent a “compelling reason.” In doing so, she endorsed the following statement about the identification of individuals who file serious complaints:
This rationale – that litigants who make serious accusations should not do so “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected” – has significant resonance. It is very easy to make serious assertions and claims. When doing so – and pursuing such a claim – litigants should not be able to hide behind anonymity, absent a compelling reason to allow it. Confidence in the administration of justice – and the open court principle – requires it.
Ms. Abramsky also held that medical information can vary in sensitivity and that, in the circumstances, anonymization was not justified.
Ontario Public Service Employees Union (Cull) v Ontario (Health and Long-Term Care), 2017 CanLII 71798 (ON GSB).
On September 13th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board was not functus officio and ought to have entertained an employer’s request to redact witness names.
The employer claimed it made an unopposed request to obscure the identities of several non-union witnesses during the Board’s hearing. When the Board issued a decision that included full names, the employer wrote the Board and asked for a correction. The Board disagreed that the employer had made a request during the hearing and held it was functus officio. The employer brought an application for judicial review, compounding the problem by filing an un-redacted copy of the decision on the Court’s public record.
The Court accepted affidavit evidence from the employer and held that it had, in fact, made an unopposed request during the hearing. Alternatively, the Court held that the Board had the power to amend its decision based on section 43 of the Public Service Labour Relations Act. The Court also ordered that its record be treated as confidential and that the applicant file new materials with witness names replaced by initials, stating, “So doing provides little, if any, derogation to the open courts principle as [the witnesses’s] identities are not germane to the decisions.”
This is an unfortunate example of (a) rising sensitivities regarding the inclusion of personal information in judicial and administrative decisions and (b) the need to be careful about it. This affair (which shall continue) could have been avoided if the parties had asked the Board to make a formal order during course of the hearing. The employer also ought to have brought a motion for a sealing order at the outset of its judicial review application, before filing un-redacted materials (a point that the Court made in its decision).
Hat tip to Ian Mackenzie.
Canada (Attorney General) v Philps, 2017 FCA 178 (CanLII).
On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.
The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.
Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.
Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).
It is inappropriate to closely parse solicitor-client communications in assessing the scope of privilege; the entire “continuum of communications” must be protected. This is the principle articulated in a June 8th decision of the Court of Appeal for British Columbia.
The Court allowed the appeal of a chambers judge order to produce parts of a series of e-mails between a government lawyer and staff at an administrative tribunal. The content ordered to be produced included:
- two paragraphs and two sentences of a ten paragraph advisory e-mail in which the chambers judge suggested the lawyer stepped beyond his role as legal advisor and impinged upon the tribunal’s decision-making authority;
- a follow-up e-mail that the chambers judge held was not privileged for similar reasons; and
- follow-up correspondence between (internal) clients discussing the lawyer’s advice.
The Court held that all this communication was part of the “continuum of communications” that supported the solicitor-client relationship and was therefore privileged. It held there was no basis for a finding that the lawyer usurped the tribunal’s decision making authority, also stating:
In my view, it is in the nature of legal advice that it may influence the decision-making of the client. The purpose of legal advice is normally to advise the client on the best course of action to comply with the relevant law. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible is still legal advice.
The dispute arose after the above communications were inadvertently disclosed in response to a freedom of information request made by a law firm. The receiving lawyer obtained the communications as part of a disclosure package in which government made a number of exemption claims. She believed government to have waived privileged and used the communications in a proceeding, which led government to assert its privilege claim and claim its disclosure was inadvertent. The Court held there was no waiver. It wasn’t highly critical of the receiving lawyer given these facts, but reminded lawyers of their duty to give notice when they receive communications that are apparently privileged.
British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (CanLII).
Yesterday the Supreme Court of Canada issued a decision in which it held that the Information and Privacy Commissioner of Alberta does not have the power to compel the production of documents over which solicitor-client privilege is claimed in conducting an access inquiry under Alberta’s public sector access and privacy statute.
The case – which arose out of an access request made to the University of Calgary – is a sequel to the 2008 Blood Tribe Department of Health case in which the Supreme Court of Canada made a similar finding regarding the Office of the Privacy Commissioner of Canada’s powers under the Personal Information Protection and Electronic Documents Act. Blood Tribe established that solicitor-client privilege cannot be abrogated by statutory language that is any less than “clear, explicit and unequivocal.” PIPEDA, however, is a unique statute. It establishes the OPC as an ombudsperson and not in adjudicator, and the power to produce that the OPC relied upon in Blood Tribe was drafted in the most general terms. Accordingly, Blood Tribe left a question about the powers of other privacy commissioners under more traditional statutes.
That question is now answered.
The Alberta Freedom of Information and Protection of Privacy Act gives the Alberta Commissioner the power to order production despite “any privilege of the law of evidence.” This phrase appears in a number of other public sector access and privacy statutes as does the similar phrase “any privilege under the law of evidence.” Ten privacy and access authorities therefore intervened in the University of Calgary case to argue in support of their mandates.
Nonetheless, a five judge majority held that the language of Alberta FIPPA is not clear enough to override solicitor-client privilege. The majority took pains to root its analysis in statutory interpretation principles, but its finding is best understood as reflecting a near absolute dedication to the supremacy of solicitor-client privilege. The majority also viewed the Alberta Commissioner as something less than an impartial adjudicator, alluding to the tradition by which information commissioners often act as parties in reviews of their own orders.
We must be careful in drawing broad conclusions about a finding under a particular access and privacy statute, but this decision will have a ripple effect. Commissioners across Canada may adjust their protocols for dealing with solicitor-client privilege claims and may lobby for statutory amendments. University of Calgary is a good news decision for institutions given the burden of arguing solicitor-client privilege claims on a record-by-record basis.
Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII).
Yesterday the Court of Appeal for British Columbia held that a class action alleging vicarious liability for breach of the British Columbia Privacy Act should not be struck.
The claim is based on an allegation that an ICBC employee improperly accessed the personal information of about 65 ICBC customers. The Court dismissed ICBC’s argument that the Privacy Act only contemplates direct liability because its statutory tort rests on wilful misconduct. The Court reasoned that a requirement of deliberate wrongdoing is not incompatible with vicarious liability.
ICBC also raised a seemingly dangerous policy question for a data breach defendant: “Should liability lie against a public body for the wrongful conduct of its employee, in these circumstances?” The Court said this question should be answered based on a full evidentiary record.
While allowing the vicarious liability claim to proceed, the Court held that the plaintiff could not found a claim on an alleged breach of the safeguarding provision in British Columbia’s public sector privacy act. It did consider whether to recognize a common law duty to abide by the safeguarding provision, but held that it should not do so based on policy grounds, including the need to defer to the comprehensive administrative remedial regime provided for by the legislature.
Ari v Insurance Corporation of British Columbia, 2015 BCCA 468 (CanLII).